concurring specially. The question, simply stated, is whether or not the plaintiff’s case was pending in the trial court at the time she attempted to dismiss. Prior opinions of both this court and the Supreme Court have clouded the issue and hence this special concurrence in order to again review the situation.
In my opinion not just any amendment filed to the petition prior to the remittitur being made the judgment of the trial court revives the cause of action so as to make it a pending cause. This is only true where the amendment cures the defect pointed out by the reviewing court. If as a matter of law it does not, then the cause of action is no longer pending and all further proceedings are nugatory, and subsequent dismissal by the plaintiff would prejudice the rights of the defendant.
In the previous appearance of this case (General Motors Corp. v. Jenkins, 114 Ga. App. 873, 876) we said, “Where a vehicle is brought to an automobile dealer by its owner for the purpose of having it repaired and the owner reveals to the dealer the fact that there is a dangerous defect in the vehicle, the failure of the dealer to discover and correct the defect when he could have done so by the exercise of ordinary care relieves the manufacturer of liability, unless the manufacturer should have foreseen that a dealer might fail to discover and remedy the defect by the exercise of ordinary care. The petition in this case fails to make this one allegation which would bring the manufacturer’s liability into being,” and went on to hold that the trial court therefore erred in overruling the general demurrer of General Motors Corporation. After this ruling and before the remittitur was made the judgment of the trial court it is clear that the plaintiff had a right to amend or dismiss the petition. Here the plaintiff sought to amend and timely filed the following amendments, identical but on different dates, to wit: “That defendant General Motors Corporation should have foreseen that defendant Daniel Chevrolet Company might fail to discover the remedy and defects herein alleged, by the exercise of ordinary care, particularly since defendant General Motors Corp. was itself negligent and should have anticipated that the defendant Daniel Chevrolet Company might likewise be negligent as herein alleged.”
*532No new facts were alleged on which to base the conclusion stated in the proffered amendment, and under the ruling of the Supreme Court in Gordon County Broadcasting Co. v. Chitwood, 212 Ga. 21 (90 SE2d 5), it is clear that the amendment here tendered was inadequate and should have been stricken on demurrer. In that case the Supreme Court said: “It will be seen that petitioner has added by amendment, and in the same terms, what this court said was lacking in the petition when it was previously before this court. It is contended that, since the petitioner has added what the court said was lacking before, the petition now sets out a cause of action and that this is the law of the case. With this conclusion we do not agree. It must be remembered that, in the previous opinion in the instant case, this court was not pleading and was not setting up a form to be followed in pleading. It was not there said that, if the petition had alleged the language there used, it would have been held to have set out a cause of action. This court there simply stated in general terms what the facts alleged specifically must show in order to set out a cause of action for the relief sought,” concluding that the amendment simply alleged certain conclusions from facts which the court had previously held were not sufficient to set out a cause of action and that it was error to refuse to strike the amendment on demurrer and with the amendment stricken, error to overrule the general demurrer.
If as a matter of law, the amendment offered here did not aid and revive the petition it became dead as a dodo when the remittitur was made the judgment of the trial court, for as was stated in Georgia Industrial Realty Co. v. Smith, 219 Ga. 482, 485 (134 SE2d 36): “In the present case, since the amendment filed prior to the time the remittitur of this court was made the judgment of the trial court was insufficient to perfect a cause of action, and the defendant demurred to the petition as amended on that ground, it was error for the trial judge to deny the renewed motion of the defendant to strike the petition as subsequently amended. All further proceedings were nugatory, and the exception in the main bill of exceptions to the judgment of the trial court sustaining the defendant’s motion for judgment notwithstanding mistrial, need not be considered.” (Emphasis supplied.)
*533Under the authorities cited above it would appear that unless the amendment is something more than an alleged conclusion or unless it is sufficient to perfect a cause of action, it is meaningless and stands on the same footing as if no amendment had been filed. In Southeastern Wholesale Furniture Co. v. Atlanta Metallic Casket Co., 84 Ga. App. 271 (66 SE2d 68), this burden is squarely placed upon the pleader, for the holding there is on the condition that “if he succeeds in perfecting the pleadings, either in the same proceeding or a new one, the decision of the appellate court on this issue no longer adversely affects him.” Pp. 277, 278. (Emphasis supplied.)
The amendment offered here in no way met the defect pointed out by this court when the case was first under review, was a mere conclusion and did not in any way aid or perfect the petition. This being true the litigation ended when the remittitur was entered in the trial court and all further proceedings were nugatory, and the plaintiff had no case to voluntarily dismiss under the provisions of Code § 3-510, and any attempt to do so would be prejudicial to the rights of the defendant General Motors.
Failure of this court to so hold would allow the filing of an utterly inadequate and meaningless amendment to revive a petition we have held to be lifeless resulting in a non-stop legal merry-go-round.
I am authorized to state that Judge Eberhardt concurs in this special concurrence.
Pannelu, Judge, concurring specially. I concur in the result reached by the majority, but for the reason that the attempted dismissal was completely ineffectual as the case had already been dismissed by the first ruling sustaining the general demurrer and the subsequent failure of the amendment filed within the time extended to meet this ruling. General Motors Corp. v. Jenkins, 114 Ga. App. 873 (152 SE2d 796); Simpson v. Hayes, 208 Ga. 754 (69 SE2d 567).